McClure Law Group, Author at Texas Divorce Attorney Blog

Texas Husband Considered Child’s Father Despite Paternity Test Otherwise

Published on: December 11, 2019 | by McClure Law Group

Texas family law presumes a husband is the father of his wife’s children born during the marriage. A presumed father may challenge paternity, but he generally must do so by the child’s fourth birthday. Adjudication of the paternity of a child with a presumed father may occur later, however, if a court finds the presumed father did not live with or have sexual intercourse with the mother when the child was conceived or if misrepresentations led the presumed father to a mistaken belief he was the biological father. Tex. Fam. Code § 160.607.

A husband recently challenged a trial court order including a child as a child of the marriage after he presented evidence of a DNA test showing he was not the father. The daughter was born in 2004 and the son in 2012. In 2013, the husband obtained a paternity test confirming he was not the daughter’s biological father. He filed for divorce in 2017. In his petition, he listed both children as “children of the marriage” and sought the right to designate their primary residence. He sought child support and medical support from the wife for both children. The wife also sought child support, medical support, and the right to designate primary residence.

Each spouse alleged the other had been unfaithful. The husband presented the DNA test results to support his allegation. When his attorney asked if he was asking the court to say that the daughter was not his child, he indicated he was not and agreed he accepted parental responsibility for her. He indicated the purpose of admitting the paternity test was not to deny paternity, but to show that his wife had been unfaithful. Both parents testified the girl had not been told she was not the husband’s biological child.

Texas Court Orders Child’s Name Change to Include His Father’s Surname

Published on: November 13, 2019 | by McClure Law Group

Under Texas family law, a court may order a child’s name be changed if doing so is in the child’s best interest. Neither parent is specifically granted the right to name the child under Texas law, but generally a child’s name will not be changed unless the party seeking the change shows a good reason for it. In a recent case, a mother challenged a court’s order to change the child’s name to include the father’s last name.

The parties appeared to have a good co-parenting relationship. According to the appeals court’s opinion, the child lived with the mother, but the father had always been a part of his life and assisted financially with his living expenses. The father’s family was also significantly involved in the child’s life, helping the mother financially and with child care.

The mother had been adopted as a young child. She grew up in Virginia and moved to Texas when she was 18. She did not have any family other than her son in Texas. Due to the distance, the child did not have the same amount of interaction with his mother’s family that he had with his father’s family.

Texas Court Awards Grandmother Custody of Grandchild

Published on: October 23, 2019 | by McClure Law Group

Although it can be difficult, in certain circumstances, Texas family law may permit a grandparent to obtain custody even when a parent wants custody. In a recent case, a mother appealed an order giving the grandparents the exclusive right to determine a child’s primary residence.

In 2014, the trial court named the mother managing conservator of her 18-month-old son with the exclusive right to determine his primary residence. The mother and child lived in Lubbock for about a year, and then moved to live with the mother’s brother for about a year. After that, however, the mother and child moved multiple times. The mother dated men who had violent criminal histories. Child Protective Services opened an investigation and developed a safety plan. The child’s paternal grandparents petitioned for the exclusive right to determine the child’s primary residence, and the court granted the petition. The mother appealed.

The mother argued the trial court erred because the grandparents did not have standing to move for modification. She also argued the trial court abused its discretion when it found there was a material and substantial change in circumstances justifying a modification.

Texas Court Finds Prenuptial Agreement Was Enforceable

Published on: October 2, 2019 | by McClure Law Group

Texas law generally favors the freedom of contract. This principle also applies to prenuptial agreements. In Texas divorce cases, prenuptial agreements are generally valid and enforceable unless they were involuntarily signed or were unconscionable and signed without proper disclosures.

A wife recently challenged the enforceability of a prenuptial agreement. The couple met online while the wife lived in Vietnam. When the husband visited Vietnam, he gave her a copy of the prenuptial agreement his attorney drafted. The wife did not speak English, so she had it translated. She requested a change to the agreement.

The wife came to the U.S. and told the husband she was pregnant a few months later. He told her she needed to sign the agreement before they got married. The husband stated a paragraph was removed from the agreement based on the wife’s request.

Spousal Maintenance Awards in Texas Divorce Cases

Published on: September 11, 2019 | by McClure Law Group

A court in a Texas divorce case may only order spousal maintenance if certain conditions are met. The court must then consider relevant factors in determining the duration, amount, and manner of the payments. The other spouse may challenge a maintenance award if there is insufficient evidence to support a finding of eligibility for maintenance or if the trial court abused its discretion in ordering the specific award.

In a recent case, a husband challenged a maintenance award and the property division in his divorce.

Under Tex. Fam. Code Section 8.051, a spouse may receive spousal maintenance if he or she cannot earn enough income to meet his or her “minimum reasonable needs” due to certain specified circumstances. In this instance, the applicable provision of the statute provides that a spouse may be eligible for maintenance if he or she does not have the ability to make sufficient income to meet his or her minimum reasonable needs and has been married for at least 10 years.

Mental Health Problems in Texas Custody Cases

Published on: August 21, 2019 | by McClure Law Group

Texas divorce cases are never easy, but can become even more complicated when one or both parents have mental health problems. Mental health problems may, but do not necessarily, affect a parent’s competence to testify or participate in the proceedings. Depending on the nature of the mental health problems, they may also affect the parent’s ability to care for the child.

In a recent case, a mother challenged a trial court’s order appointing the father as sole managing conservator. According to the appeals court’s opinion, the husband filed for divorce when the child was just eight months old. The trial court issued a temporary order appointing both parents temporary managing conservators. The father was working in Las Vegas at the time and was granted possession on weekends when he was in San Antonio, with the mother having the child the rest of the time. Both parents were ordered to participate in psychological evaluations.

The court limited the mother’s contact with the child to supervised visits after receiving the psychological evaluations. The child was to live with his paternal grandmother in San Antonio, but granted the father possession when he was in San Antonio.

Court Must Assign Value to Lease in Texas Divorce

Published on: July 31, 2019 | by McClure Law Group

A trial court in a Texas divorce must divide community property in a just and right manner. Property can be somewhat broadly defined as it relates to property division in a divorce case. Many people do not realize that a lease of someone else’s property is subject to division in a divorce, unless the lease is shown to be separate property.

In a recent case, the wife challenged a property division that did not include a recreational lease held by the husband. The wife appealed the property division, arguing error in the trial court’s division of property. She argued the court failed to include a recreational lease in the community estate and that the court unfairly allocated the husband’s tax debt. The court had allocated all of the tax debt to the husband, but the wife argued the court erred in using it to offset the value of the assets awarded to the husband.

At trial, there was evidence the husband signed a written lease for a ranch during the marriage. The husband’s friend owned the property and testified the husband had helped him build or enhance some of the improvements on the property. The owner testified he would sell the ranch to the husband for a significant discount and indicated he would extend the lease to the husband indefinitely as long as he paid the rent.

Temporary Orders in Texas Custody Cases

Published on: July 10, 2019 | by McClure Law Group

The Texas Family Code limits a trial court’s ability to issue temporary orders during a pending suit to modify the parent-child relationship. The court cannot issue a temporary order designating or changing the designation of the person with the exclusive right to designate the child’s primary residence unless it is in the child’s best interest and the current circumstances would significantly impair his or her physical health or emotional development, the designated person has voluntarily given up primary care and custody, or the child is at least 12 years old and has identified the person he or she prefers to have the right to designate the primary residence. The court is also prohibited from creating, changing, or eliminating a geographic limitation on the child’s primary residence unless those same conditions are met.

A father recently challenged a temporary court order requiring his children be enrolled in a school district where neither parent lived.

The divorce decree named the parents joint managing conservators of their three children, but granted the father the exclusive right to designate their primary residence with no geographic restriction. Each parent had the independent right to make decisions about the children’s education.

Divorcing an Adulterer in Texas

Published on: July 3, 2019 | by McClure Law Group

Adultery can have a devastating effect on the wronged spouse and on a marriage. When adultery leads to a Texas divorce, the wronged spouse has the option of raising the issue of adultery in the divorce or allowing the divorce to be granted without fault.

Texas recognizes no-fault divorce, but also still has fault-based grounds for divorce. A Texas divorce court may either grant a no-fault divorce upon a finding that the marriage is insupportable due to discord or conflict or it may grant a divorce based on fault for certain reasons, such as cruelty or adultery. The court has the discretion to determine whether the divorce will be granted on insupportability or fault-based grounds. Even if there is uncontroverted and sufficient evidence of adultery, the court has the discretion to grant a no-fault divorce. The presence of adultery in the marriage, therefore, does not necessarily mean that the divorce will be granted based on adultery.

Although divorce can be granted without fault, there can be benefits to obtaining a divorce based on the other party’s fault. A finding of fault can have a significant impact on property division and in some cases can also affect custody.

Court May Order Battering Intervention and Prevention Program in Texas Custody Case

Published on: June 19, 2019 | by McClure Law Group

In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them. If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met. A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.

The parents lived together with the child until the mother moved out of the home. The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence. A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.

When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport. The father requested findings of fact and conclusions of law, then appealed.